- ...,1 Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 1 of 66 ® ~' fv;/ H}i 1) oSTROIANI/KIVITZ, L.L.P. ~~~~~~~~~~~~~~~ATTORNEYS AT LAW~~~~~~~~~~~~~~~ DOLORES M. TROIANI, ESQUIRE BEBE H. I<IVITZ, ESQUIRE 38 NORTH WATERLOO ROAD DEVON, PA 19333 ( 610) 688-8400 FAX(610)688-8426 November 21, 2005 HAND-DELIVERED Office of the Clerk of Court Eastern District of Pennsylvania United States Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 RE: Constand v. Cosby, No. 05-CV-1099 Plaintiff's Motion for Sanctions Concerning Conduct of Defendant At Deposition and Memorandum of Law in Support of Motion To the Clerk: Enclosed for filing in the above-captioned matter, please find an original and two CD disks. Thank you for your anticipated cooperation. Respectfully submitted, DMT:m Enclosure cc: Patrick J. O'Connor, Esquire (Via-hand-delivery) Andrew D. Schau, Esquire, (Via first class mail) Andrea Constand (Via first class mail) Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 2 of 66IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND CIVIL ACTION Plaintiff NUMBER 05-1099 v. WILLIAM H. COSBY, JR. Defendant PLAINTIFF'S MOTION CONCERNING CONDUCT OF DEFENDANT'S DEPOSITION AND MOTION FOR SANCTIONS Plaintiff prays this Honorable Court to Order Defendant to adhere to the guidelines set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and further to order Defendant to submit to a full and complete deposition at his expense, and to sanction Defendant and/or his counsel by requiring them to reimburse Plaintiff for the costs of the Defendant's deposition, and to impose other sanctions, as the Court deems appropriate, and in support thereof incorporates herein the Memorandum of Law which is attached hereto. Respectfully submitted, TROI I/KIVITZ, LP BY: DOL RES M. TROIANI Attorney I.D. 21283 BEBE H. KIVITZ I.D. 30253 Attorneys for Plaintiff 38 North Waterloo Road Devon, PA 19333 (610) 688-8400 Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 3 of 66CERTIFICATE OF SERVICE I hereby certify that on November 21, 2005, the undersigned were served in the following manner, a true and correct copy of: Plaintiff's Motion for Sanctions Concerning Conduct of Defendant at Deposition and Memorandum of Law. NAME MANNER The Honorable Eduardo C. Robreno Via Hand Delivered by Courier Eastern District of Pennsylvania U.S. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Office of the Clerk of Court Via Hand Delivered by Courier Eastern District of Pennsylvania U.S. Courthouse 601 Market Street, Room 2609 Philadelphia, PA 19106 Patrick J. O'Connor, Esquire Via Hand Delivered by Courier Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Andrew D. Schau, Esquire Via First Class Mail Patterson Belknap Webb & Tyler, LLP 1133 Avenue of the Americas New York, NY 10036 j .fl 1 By: /i ~ Dolo s M. Troiani Attorney I.D. No. 21283 for Plaintiff Date: I J~ lo£ Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 4 of 66IN THE UNITED:STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ANDREA CONSTAND, CIVIL ACTION Plaintiff NUMBER 05-1099 v. WILLIAM H. COSBY, JR., Defendant MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION CONCERNING CONDUCT OF DEFENDANT'S DEPOSITION AND MOTION FOR SANCTIONS Plaintiff respectfully requests that this Honorable Court order Defendant to adhere to the guidelines set forth in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and further to order Defendant to submit to a full and complete deposition at his expense, and to sanction Defendant and/or his counsel by requiring them to reimburse Plaintiff for the costs of the Defendant's deposition, and to impose other sanctions, as the Court deems appropriate. Federal Rule of Civil 30(d) (3) authorizes the imposition of sanctions if the court finds that "any impediment, delay, or other conduct has frustrated the fair examination of the deponent." Further, this Honorable Court has promulgated certain procedures which state that if a discovery dispute requires the "Court's intervention, the Court customarily imposes sanctions upon the non-prevailing party unless the position of the nonparty is found to have been substantially justified." As is evident below, defense counsel's conduct cannot be justified -1-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 5 of 66under any circumstances. Counsel engaged in conduct demeaning to the profession of law, deliberately obstructive, and unnecessarily vexatious, which conduct impeded the fair examination of the deponent. Defendant was deposed on September 27 and 28, 2005. Defense counsel was so obstructive in the deposition that he denied Plaintiff her right to an appropriate interrogation. Defense counsel openly coached the witness; conferred with him about the questions which were being asked; interrupted the questioning with long winded and repetitive speaking objections; directed defendant not to answer questions, (when privilege was not in issue), inappropriately asserted a claim of to numerous questions and lines of questioning; and ultimately improperly terminated the deposition. Defense counsel's conduct was demeaning and disrespectful and beyond the pall of normal advocacy. His conduct so far exceeds the bounds of appropriate 1behavior that the majority, (but not all) , of the conduct is reproduced herein so that this Honorable Court may have the full flavor of the obstructive nature of counsel's actions. A sampling of the actions which are the subject of this 1 The Court has had the benefit of reading both days of the deposition, as well as, the Motion to Compel which has been simultaneously filed with the Motion. Plaintiff is not waiving her challenges to Defense Counsel's conduct on those days, but respectfully submits that the fifty pages of examples cited herein are sufficient proof to support Plaintiff's request for relief. -2-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 6 of 66motion are as follows: 1. QUESTIONS RELATING TO A POLICE DOCUMENT Defendant was being questioned about a document which was It listed two social security numbers generated by the police. and addresses "associated with" defendant. The questions were directed at defendant's knowledge as to why those items would be "associated with" him. Prior to the deposition, in open Court, defense counsel had agree to provide plaintiff with information concerning defendant's residences. He did not provide the information. The following exchange occurred. MS. TROIANI: There can't be an agreement if we both don't agree. MR. O'CONNOR: You're never going to learn unless you listen. The agreement with the court was that I would allow Mr. Cosby to be questioned on residences where he lives. I indicated to the court in front of counsel that there was a listing of some 20 properties, referenced on a policy of insurance that we blocked out with the understanding that when it came time for his deposition, I would allow counsel to explore with Mr. Cosby where he lives. Now, as far as I'm concerned, that's fairly simple questions. Where do you reside and he would answer those questions. She is not going to get a listing from Mr. Cosby of other assets and property which he owns. And I feel comfortable -3-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 7 of 66in that direction. MS. TROIANI: I asked him what his residences were and he said Massachusetts. He did not go through which one of these properties and you did not provide it before the deposition. MR. O'CONNOR: He told you he resided in Cheltenham. MS. TROIANI: No, he did not. MR. O'CONNOR: He told you he resided in New York, he told you he resided in Massachusetts. You asked him with whom he resides in I allowed those questions to be asked. I allowed them to be answered. If you want to ask him if he resides in any location in California, I will allow him to answer that. But you go through this litany, I'm not going to allow that. Ask the question, that's the agreement. (9/29/05, 16-17) The line of questioning was twofold. It not only concerned defendant's residences which Defendant had agreed in open court to provide but which were not provided; it also concerned the list generated by the police. Plaintiff had every right to inquire as to the accuracy of the list, and as to defendant's knowledge of why the addresses appeared on the list. -4-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 8 of 66Furthermore, counsel misrepresented that his client stated that he resided in New York and Cheltenham, and the record does not comport with that statement. As is evident below, counsel repeatedly misstated the testimony and the documents provided by the police. On September 27, 2005, the parties and counsel appeared before this Honorable Court in order to address certain discovery issues which were outstanding, and about which it was anticipated disputes would arise during the deposition. Plaintiff believed that the issues had been resolved by agreement and the Court issued an order finding that the disputes were moot. In fact, Defendant simply did not honor the agreements. 2. QUESTIONS RELATING TO QUAALUDES After defendant testified that he obtained seven prescriptions for Quaaludes, the following testimony was elicited: Q. You gave them to other people? A. Yes. (9/29/05, 66) Q. You gave those drugs to other people knowing that it was -MR. O'CONNOR: He said he gave it to T--- right now. MS. TROIANI: He said other people. He did say other people. -5-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 9 of 66BY MS. TROIANI: Q. Knowing that it was illegal? ***MR. O'CONNOR: Whatever the legality of it is, it will stand. I'm instructing him not to answer. He gave the Quaaludes. If it was illegal, the courts will determine that. BY MS. TROIANI: Did you ever get another prescription for Q. Quaaludes from another doctor after that time? MR. O'CONNOR: This is in the '70s? THE WITNESS: A. No. BY MS. TROIANI: Q. Who are the people that you gave the Quaaludes to? MR. O'CONNOR: Keep it to the Jane Does. I'm not going beyond it. I'm instructing him not to answer it beyond the Jane Does. (Tr. 9/29/05. 66-68) BY MS. TROIANI: Q. When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with? A. Yes. Q. Did you ever give any of those young women the -6-Case 2:05-cv-01099-ER Document 48 Filed 11/21/05 Page 10 of 66Quaaludes without their knowledge? Object to the question. Restrict it to the Jane MR. O'CONNOR: Does, would you, please. MS. TROIANI: No, I will not. MR. O'CONNOR: Do not answer it. MS. TROIANI: It's a discovery deposition. THE WITNESS: I misunderstood. Woman, meaning T-----, and not women. BY MS. TROIANI: So, you're saying you never gave the Q. Okay. Quaaludes to anyone other than T-----? MR. O'CONNOR: Don't answer the question. You can ask all the questions you want about the Jane Does. BY MS. TROIANI: Sir, I want to explain to you. I'm asking you a Q. question. You have every right in the world to say, no, you're misunderstanding me. A. I just did. Q. Your counsel cannot give you clues, as he is obviously trying to do, that's inappropriate. MR. O'CONNOR: I'm not giving him clues. I'm instructing him not to answer, except in the context of T-----. And you keep violating my objection. We're going to go to court to resolve this. And every time you ask about relationships with other -7-